As more and more employees leave their companies - either voluntarily or involuntarily - companies must confront the fact that their former employees take proprietary information with them.

Sadly, many companies wait until employees leave before taking steps to protect their proprietary information, and by then it is too late. The good news for companies is that they can take easy steps to protect their proprietary information before it is too late.

What is proprietary information? A company's proprietary information typically takes two forms: (1) trade secrets and (2) other confidential information. In most states, including Georgia, trade secrets are defined by a statute regardless of whether a company requires its employees to contractually agree to protect its trade secrets.

To obtain the protections afforded by the statute, however, requires the company to properly secure its trade secrets. Confidential information is other information that, although not rising to the statutory definition of a "trade secret," is still information that the company guards from entering the public domain.

All companies - regardless of size - have proprietary information (marketing and sales information; customer, potential customer and supplier/vendor information; pricing information, financial data, regulatory approval strategies, investigative records, etc.).

How to secure your company's proprietary information?

When I assist a company with securing its proprietary information, I start with the basics to create awareness throughout the company that the protection of this information is important.

Several small measures will quickly add up - create a policy regarding the security of company computers and data; limit access to databases to those employees who have a need to know the contents; install monitoring software on employees' computers; and, most importantly, require employees to sign written agreements regarding the protection of the company's proprietary information.

Are written agreements always necessary? In Georgia, a company must enter into written agreements with its employees if it wants to protect a type of information that is not included in the Georgia Trade Secrets Act's narrow definition of a "trade secret."

Much like a company uses non-competition or non-solicitation provisions to prohibit employees from competing against it or soliciting its customers after the employment relationship ends, a company must enter into a non-disclosure provision to protect its confidential information. The legal requirements to enforce non-disclosure provisions vary by state.

The bottom line for a company - consult with an attorney who specializes in the protection of trade secrets and confidential information in the state in which the company seeks to require its employees to sign non-disclosure provisions.

The requirements for an enforceable non-disclosure provision in Georgia. Georgia courts usually declare a company's non-disclosure provision unenforceable for two reasons.

First, unlike a trade secret, which is protected for the entire time in which the information remains a trade secret, a company can only protect its confidential information for a definitive period of time and that specific period of time must be set forth in the non-disclosure provision.

While the specific period of time depends on a number of factors, as a general rule, a company can protect its confidential information in Georgia for one to five years.

Besides failing for the lack of a temporal limit, the other reason a non-disclosure provision is most likely to fail in Georgia is its failure to properly define confidential information.

Not only must the non-disclosure provision define confidential information, it must not overreach in its definition by, for example, defining confidential information in such a way so as to include information that is either in the public domain or not otherwise the subject of efforts by the company to maintain its secrecy.

An ounce of prevention ... The cost of preventive measures to protect a company's proprietary information pales in comparison to the expense of trade secret litigation or, worse, the lost value of a company's trade secrets or proprietary information.

With the workforce more volatile than ever, your company should take this opportunity to review and, if necessary, revise its preventive measures before the next departing employee walks out the door with your company's most valuable proprietary information.

Rob Capobianco is a graduate of Emory University's School of Law and a partner with the Atlanta law firm of Elarbee Thompson.

He focuses his practice on representing companies in employment and labor matters, including the protection of trade secrets and confidential information.

He can be contacted at capobianco@elarbeethompson.com or (404) 582-8412.